On August 3, 2010, President Obama signed into law the Fair Sentencing Act. That Act modified the mandatory minimum sentence for crack cocaine by increasing the amount necessary to trigger those mandatory minimum sentences. Under the Fair Sentencing Act, the 5 year mandatory minimum sentence kicks in at 28 grams vs. the original 5 grams under the old law. Also, the 10 year mandatory minimum sentence kicks in at 280 grams vs. the original 50 grams under the old law. In order to make these changes effective, the United States Sentencing Guidelines published emergency amendments to the crack cocaine guidelines in 2010. The emergency amendments are going to be made permanent on November 1, 2011. On June 30, 2011, the Sentencing Commission voted to make the amendments to the crack cocaine guidelines retroactive. This means that all defendants who were convicted and sentenced for possession with intent to distribute or for distribution of crack cocaine will be eligible for a reduction in their federal sentence. Being eligible for a reduction does not mean that all defendants will receive a reduction automatically. In order to receive a reduction, the defendant must file a motion under Title 18, United States Code, Section 3582(c)(2). Most importantly, the defendant must wait until after the November 1, 2011 effective date of the amendment. Any motion filed prior to that time is subject to being denied by the court as premature. Not all defendants who were convicted of a crack cocaine offense will be eligible to receive a reduced sentence. In certain circumstances, typically based on the quantity of the crack cocaine at the original sentencing, the changes in the guidelines will not result in a reduction in the sentence.
In a federal white collar criminal case originating out of the Northern District of Florida (Pensacola Division), the Eleventh Circuit recently affirmed life sentences for a pain management physician convicted of various federal offenses. Among other things, the federal indictment against Dr. David Webb alleged that he unlawfully dispensed controlled substances in violation of federal law (21 U.S.C. § 841), and engaged in health care fraud in violation of § 1347 by issuing prescriptions that were not medically necessary. In connection with both the unlawful dispensing charge, as well as the health care fraud charge, the indictment alleged that Dr. Webb's prescriptions resulted in the death of three of his patients.
At trial, both the Government and Dr. Webb presented expert testimony concerning the legitimacy of the controlled substance prescriptions at issue. According to the Government's expert, Dr. Webb: (1) gave inadequate initial evaluations, including failing to obtain prior medical records and sub-standard physical exams; and (2) failed to refer patients to specialists to help manage their pain. In addition, the Government's expert also testified that Dr. Webb also ignored signs of drug dependency in his patients and continued to prescribe drugs even when patients were "out of control with their self-taking of the medicine." Accordingly, based on these and other factors, the Government's expert opined that Dr. Webb's prescribing practices were "dangerous, absolutely incredible," and "clearly inconsistent with the usual course of medical practice and for other than legitimate medical purposes." At the conclusion of the trial, the jury returned guilty verdicts on all counts but one.
On appeal, Dr. Webb raised a number of arguments, seeking to vacate his three life sentences on the resulting in death counts, as well as the other counts for which he stood convicted. Most notably, Dr. Webb argued that the trial court erred in the instructions that it provided to the jury on the three death related counts.
In essence, Dr. Webb argued that the district court should have provided an instruction that would have required the jury to find that Dr. Webb's conduct proximately caused the deaths or, at a minimum, that the deaths were reasonably forseeable to Dr. Webb. The Eleventh Circuit, however, disagreed.
With respect to the § 841 charges, the court held that § 841's enhanced penalty requires only proof that the death resulted from the victim's use of a controlled substance dispensed by the defendant. Likewise, with respect to the death charge pertaining to the health care fraud count, the Eleventh Circuit reached a similar conclusion; according to the Eleventh Circuit, the results in death language in each statute requires nothing more than a causal connection factually. In other words, under both statutes, the Government is not required to prove proximate cause or reasonable forseeability.
Although it may not help Dr. Webb, at least one judge on the three judge panel disagreed with the court's decision concerning the resulting in death language in the federal health care fraud statute. As the dissenting judge recognized, the majority's decision on this issue directly conflicts with the Sixth Circuit's decision inUnited States v. Martinez. According to the Sixth Circuit, "proximate cause is the appropriate standard to apply in determining whether a health care fraud violation 'results in death.'"
In a previous post, we have discussed how federal prosecutors in the Atlanta area are ramping up investigations and prosecutions involving physicians that practice in the area of pain management. And as lawyers that have handled federal cases involving similar allegations before, we were disappointed by the Eleventh Circuit's decision to reject the Sixth Circuit's analysis in Martinez. Because of the conflicting decisions between the Sixth and Eleventh Circuits that we now have on the issue, however, we are hoping that the Supreme Court takes Dr. Webb's case (or a similar one) to resolve this Circuit conflict.
Lawyers that specialize in defending federal criminal cases may be interested to know that the federal sentencing commission recently released a document entitled: "Selected Post-Booker and Guideline Application Decisions for the Eleventh Circuit". According to the Commission, "[t]he document is not a substitute for reading and interpreting the actual Guidelines Manual or researching specific sentencing issues." However, those of you that practice federal criminal law in Georgia, Alabama and Florida will find the document useful, because it does contain helpful "annotations to certain Eleventh Circuit judicial opinions that involve issues related to the federal sentencing guidelines."
I reviewed the document this morning and it is a fairly comprehensive. It not only includes case annotations dealing with many of the more common guideline provisions (including fraud, internet, and immigration offenses), but it also includes several sections that involve general principles of federal sentencing law, such as burden of proof issues, the requirements for sentencing on acquitted conduct, and departures and variances.
Last week, the Eleventh Circuit Court of Appeals affirmed the convictions of Larry Langford, the former mayor of Birmingham, Alabama who was convicted last year on various federal white collar offenses including mail and wire fraud, bribery, money laundering, and federal tax offenses.
To me, the most interesting aspect of the opinion is the way in which the Court of Appeals discussed the honest services portion of the federal mail and wire fraud charges. As we discussed in this previous post, last summer, the Supreme Court issued its opinion in United States v. Skilling, a case which, in essence, limited the honest services provision of the federal fraud statutes to bribery and kickback schemes.
Before Skilling was decided, many (if not all) federal circuits made a distinction between honest services prosecutions that involved public officials, as opposed to those working in the private sector. At the risk of simplifying the issue too much, it was far easier for the government to prove an honest services violation against a public official. Skilling itself, however, did not distinguish between public officials and private actors, leading some to believe that after Skilling, the prosecution of both public and private officials would be governed by the same standards.
In its decision in Langford last week, though, the Eleventh Circuit appeared to recognize that the public official/private actor distinction that existed in this Circuit before Skilling still exists. According to the Eleventh Circuit: Public officials inherently owe a fiduciary duty to the public to make governmental decisions in the public's best interest. . . . [I]n a democracy, citizens elect public officials to act for the common good. When official action is corrupted by secret bribes or kickbacks, the essence of the political contract is violated. Illicit personal gain by a government official deprives the public of its intangible right to the honest services of the official."
Well before Skilling, there was considerable disagreement among judges regarding the reach and meaning of the honest services statute in both the public and private sector. Although Skilling limited the reach of the statute to cases that involve bribery and kickbacks, it did not address the abundance of issues over which this considerable disagreement existed. Given the Eleventh Circuit's apparent decision to return to the pre-Skillingera in which a distinction exists between the standards governing the prosecution of public officials and private actors, there are many issues that should and will be litigated in this amorphous area known as "honest services" fraud. As Justice Scalia himself recognized in Skilling, even with the majority's pairing down of the statute, the honest services statute nonetheless remains unconstitutionally vague.
The Supreme Court issued an opinion in the case of Global-Tech Appliances, Inc. v. SEB S.A., a civil patent infringement case. A key issue was whether under 35 U.S.C. s 271(b), a party "must know that the induced acts constitute patent infringement." This case, however, is extremely important for the white collar practitioner and other criminal law practitioners who have cases with willful blindness issues. Willful blindness has been a recent concern in the white collar realm because a CEO, CFO, or other corporate executive may be claiming that he or she did not know about the questioned criminal conduct.
In Global Tech, the Court outlines its position for purposes of both criminal and civil law stating that "[o]ur Court has used the [Model Penal] Code's definition as a guide in analyzing whether certain statutory presumptions of knowledge comported with due process. . . And every Court of Appeals -- with the possible exception of the District of Columbia Circuit ...-- has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes." (citations omitted) The Court later states:
"While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. . . . By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing, see ALI, Model Penal Code § 2.02(2)(c) (1985), and a negligent defendant is one who should have known of a similar risk but, in fact, did not, see § 2.02(2)(d).
"The test applied by the Federal Circuit in this case departs from the proper willful blindness standard in two important respects. First, it permits a finding of knowledge when there is merely a "known risk" that the induced acts are infringing. Second, in demanding only "deliberate indifference" to that risk, the Federal Circuit's test does not require active efforts by an inducer to avoid knowing about the infringing nature of the activities."
Justice Kennedy dissents. He states, "[h]aving interpreted the statute to require a showing of knowledge, the Court holds that willful blindness will suffice. This is a mistaken step. Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy." He also states: "[t]he Court appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge. It does so in a civil case where it has received no briefing or argument from the criminal defense bar, which might have provided important counsel on this difficult issue."
A
Washington appeals court today struck down a man's conviction and life
sentence in a drug case on the grounds the police unlawfully tracked his
movement with a GPS device that had been installed without a warrant on
his vehicle.
The
unanimous three-judge ruling in the U.S. Court of Appeals for the D.C.
Circuit said that law enforcement officers must obtain a warrant to use
GPS tracking equipment. The appeals court said the government violated
the Fourth Amendment and reversed the conviction of the defendant,
Antoine Jones, former co-owner of a night club in Washington.
"We're
gratified that a unanimous D.C. Circuit agreed that protecting civil
liberties requires that the technology of the 21st Century be evaluated
on its own terms, and not as if it were still the technology of past
decades," said Arthur Spitzer, legal director of the American Civil
Liberties Union National Capital Area, which participated as a
friend-of-the-court. "That principle needs to be applied in many other
contexts as well."
A
spokesman for the U.S. Attorney's Office for the District of Columbia,
William Miller, said the government is reviewing the opinion. Miller
declined to comment further. Prosecutors could decide to ask the full
court to review the case. The government can also petition the U.S.
Supreme Court to take the case. Two federal appellate circuits--the 9th
and the 7th--have found that the use of GPS tracking over a long period
of time is not a "search" under the Fourth Amendment.
Federal
prosecutors argued the police did not need a warrant to track the
travels of the drug trafficking suspect, Antoine Jones, because he was
moving freely about in a vehicle on public roads in the District of
Columbia and in Maryland. The authorities initially had a warrant, but
it expired. The GPS device was re-attached to Jones's vehicle in
violation of a court order in the U.S. District Court for the District
of Columbia.
The appeals court, in a 41-page opinion written today by Judge Douglas Ginsburg, rejected the government's position. Click here for the opinion and here for earlier coverage of the case.
Ginsburg,
joined by Judges David Tatel and Thomas Griffith, said the "whole of a
person's movement" is not "exposed" to the public because the whole
reveals more about a person than individual movements. Ginsburg drew a
comparison to a person's rap sheets, suggesting that one crime in a
person's papers does not compare to a full understanding of the person's
criminal history.
"It
is one thing for a passerby to observe or even to follow someone during
a single journey as he goes to the market or returns home from work,"
Ginsburg wrote. "It is another thing entirely for that stranger to pick
up the scent again the next day and the day after that, week in and week
out, dogging his prey until he has identified all the places, people,
amusements, and chores that make up that person's hitherto private
routine."
A
single trip to a gynecologist's office "tells little about a woman, but
that trip followed a few weeks later by a visit to a baby supply store
tells a different story," the judge said. "A person who knows all of
another's travels can deduce whether he is a weekly church goer, a heavy
drinker, a regular at the gym, an unfaithful husband, an outpatient
receiving medical treatment, an associate of particular individuals or
political groups -- and not just one such fact about a person, but all
such facts.
Jones
, co-owner of the "Levels" nightclub, became targets of a Metropolitan
Police Department drug investigation. The authorities arrested Jones and
Maynard in October 2005 on charges that included conspiracy to
distribute cocaine. At trial, a jury acquitted Jones on a number of
counts but could not reach a verdict on the conspiracy charge. A
mistrial was declared.
Prosecutors
brought Maynard and Jones to trial in late 2007, and a jury found the
men guilty in January 2008. The government's case was largely built on
the GPS evidence--allegedly showing Jones driving to and from a drug
stash house in Maryland. Prosecutors did not have any evidence showing
Jones was involved in any drug transaction. The government relied
heavily on statements from co-conspirators who claimed Jones was a
ringleader in a trafficking organization.
Jones's
trial counsel, A. Eduardo Balarezo, a solo practitioner in Washington,
said, "Mr. Jones always said that all he wanted was for the law to be
applied fairly, today he got his wish."
Stephen
Leckar of Washington's Shainis & Peltzman, who argued for Jones in
the D.C. Circuit last November, said that requiring investigators to
adhere to the "modest requirement" of obtaining a warrant will not
burden law enforcement.
"Judge
Ginsburg's eloquently-written opinion recognized the increasing
importance in a high-tech age of requiring law enforcement agents to
seek the approval of a neutral judge before surreptitiously installing a
device that records relentlessly your every movement in time and
space," Leckar said.
